Proponents of higher medical malpractice damages cap kick off campaign

SACRAMENTO — Often fighting back tears, proponents of an initiative to raise California’s 44-year-old cap on non-economic medical malpractice damages kicked off their signature gathering campaign Monday.

The Fairness to Injured Patients Act, billed as FIPA, would raise the $250,000 cap to about $1.2 million. That limit was established in 1975 in the form of the Medical Injury Compensation Reform Act, better known as MICRA. The proposed initiative would also make it easier to circumvent that cap entirely for some cases of catastrophic injury and death.

The medical establishment in California, led by the California Medical Association and a coalition of health care and business groups known as Californians Allied for Patient Protection, have long defended the law in the Legislature and at the ballot box. They say getting rid of MICRA will raise health insurance costs.

Those on hand Monday included retired U.S. Sen. Barbara Boxer and several people who either suffered from medical malpractice themselves or have family members who did. These include Scott Olsen and his son Steve, who was denied a CT scan after a fall when he was 2 and subsequently suffered brain damage and blindness from a resulting brain infection.

One display was a photo of Boxer with the Olsens in 1995, shortly after their $7 million jury award was reduced to the $250,000 cap.

“Since then I have carried this issue in my heart,” Boxer told reporters before the beginning of the event.

Boxer has pledged to do “whatever” she can to support the initiative. She added this will include repeatedly telling the story of how in the 1990s Republican House Speaker Newt Gingrich was inspired by MICRA to add a similar cap to his Contract With America, only to see that idea filibustered in the U.S. Senate.

Boxer was one of those who fought back tears during the hour-plus event. Another was the main sponsor of the initiative, attorney Nicholas C. Rowley, of Carpenter Zuckerman & Rowley in Beverly Hills, who described how he lost a son to medical malpractice.

The parents of 5-year-old Mia Moreno, who said she suffers cerebral palsy from being over-sedated during cancer treatment, expect a verdict in their cases after the 2020 election, making a potential difference of millions of dollars.

The emotional impact of stories like these are one reason FIPA’s supporters think they can win despite the near certainty they’ll be outspent by tens of millions of dollars. The medical industry spent $58 million to convince voters to reject Proposition 46 by a 2-1 margin in 2014, though that initiative was also bogged down by a controversial provision about drug testing doctors.

The location of Monday’s event was symbolic. Frank Fat’s is a venerable downtown Sacramento Chinese eatery known as the location of the famous 1987 Napkin Deal. Brokered in part by then Assembly Speaker Willie Brown, this was a kind of ceasefire deal between trial lawyers, insurers, doctors and some manufacturers over civil liability. If followed the 1985 decision by the California Supreme Court that declared MICRA legal, Roa v. Lodi Medical Group (1985) 37 Cal. 3d 920.

Part of that deal was raising the percentage of the limited damages attorneys can collect. But according to Rowley, that deal represented trial lawyers selling out the very people they were supposed to be protecting.

Rowley’s partner in backing the initiative, Consumer Watchdog CEO Jamie Court, ended the press conference by symbolically tearing a napkin in half. He was among those pledging to nationalize the debate, in part by noting the MICRA cap is lower than that even in red states.

“California is the most progressive state in the nation,” Court said. “Why do we have the most regressive medical negligence law?”

Rowley also took aim at a provision within the original 1975 law that exempted medical malpractice cases from the collateral source rule. Unlike some defendants, medical providers can claim they don’t need to pay for certain damages if they are covered by medical insurance or government programs.

He also took aim at claims the initiative would increase medical costs, citing what he said are the $2 billion annual costs of medical errors in California.

“When you put a cap on patients’ civil rights in a state, medical errors go up,” he said.

Court and Rowley said they were heading off to speak with Gov. Gavin Newsom’s staff about a possibly legislative change, but Rowley said they could not take a deal that offered “crumbs.”